In March 2025, Office of the Attorney General for the State of New York introduced the Fostering Affordability and Integrity Through Reasonable (“FAIR”) Business Practices Act in the State Senate and State Assembly. The legislation was introduced with the intention of revising Article 22-A of New York’s General Business Law. On June 18, 2025, the New York legislature passed the FAIR Act. It now awaits consideration by Governor Hochul.
The FAIR Act is designed to expand and strengthen consumer and small business protections by amending § 349 of the General Business Law (GBL), in part, to broaden the scope of consumer protection of deceptive business practices. For example, the FAIR Act would cover “unfair” and “abusive” practices, rather than just “deceptive” practices.
For now, New York General Business Law (“GBL”) §§ 349 and 350 remain New York’s primary consumer protection statutes, prohibiting “deceptive acts or practices” (GBL § 349) and “false advertising” (GBL § 350) in the course of business.
Generally speaking, in order to establish a deceptive or practices claim under GBL § 349, a plaintiff must establish:
Whether an objective “reasonable consumer” would have been misled by the act or practice has been litigated as courts vigorously examine GBL § 349 claims. Similarly, what constitutes “consumer oriented” behavior has also been litigated and is a requirement that somewhat distinguishes a violation of GBL § 349 from common law fraud.
Although General Business Law § 349 claims have been aptly characterized as being similar to fraud claims, they are critically different. For example, reliance is an element of a fraud claim but is not an element of a GBL § 349 claim. Additionally, while a plaintiff must prove actual injury to recover under both statutes, it need not necessarily be pecuniary harm.
GBL § 350’s prohibitions encompass material omissions and false product labels/packaging. It is broad, covering virtually all economic activity, – and designed to work in tandem with GBL § 349 while providing a tool for cases involving misleading advertisements.
The prima facie elements of a GBL § 350 false advertising claim are somewhat identical to those for a GBL § 349 deceptive acts or practices claim. Private plaintiffs and the New York Attorney General can initiate lawsuits under both statutes. The statute of limitations for monetary relief under GBL §§ 349 and 350 is three years.
In general, a consumer who has been harmed by a GBL § 349 deceptive act or practice may bring an action to get an injunction against the act or practice and to recover their actual damages, or $50 if that is greater. If the court finds that the defendant willfully or knowingly violated the law against deceptive acts and practices, it may increase the damages award to an amount no greater than three times the actual damages, up to $1,000. The court also may award reasonable attorneys’ fees to a prevailing plaintiff.
The law specific to a GBL § 350 false advertising claim provides that a consumer that has been harmed by a violation thereof may commence an action to get an injunction against the unlawful act or practice and to recover their actual damages, or $500 if that is greater. If the court finds that the defendant willfully or knowingly violated the law against false advertising, it may increase the damages award to an amount no greater than three times the actual damages, up to $10,000. The court may award reasonable attorneys’ fees to a prevailing plaintiff for a GBL § 350, as well.
Notably, the FAIR Act legislation, amongst many other things, provides for enhanced civil penalties. The Act significantly strengthens the enforcement powers available to both the Attorney General’s office, private individuals and small businesses.
Statutory damages for violations of GBL §349 would be increased from $50 to $1,000, in addition to actual damages. In the event that a defendant’s actions are willful and knowing, damages may be tripled. Importantly, an award of attorneys’ fees and costs to the prevailing would be mandatory. If the action is commenced by the New York Attorney General, a defendant would face enhanced increased civil penalties of $5,000 per violation. Willful or knowing offenses would be subject to penalties starting at $15,000 per violation and could potentially increase to three times the restitution value, depending on which amount is greater. Violations involving members of enumerated vulnerable groups would come with penalties ranging between $5,000 to $10,000 per occurrence.
The statute of limitations for GBL §§ 349 and 350 are governed by New York CPLR 214(2) and subject to a three-year limitations period. Generally speaking, in the absence of a contradiction with or frustration of purpose, federal legal regulations do not preempt GBL claims. Contact a New York Attorney General defense lawyer if you have questions about whether your advertising acts and practices comply with applicable legal regulations.
Available defenses to an allegation of false advertising include, but are not limited to, expiration of the statute of limitations period; safe harbor compliance with federal legal regulations; the representation is mere “puffery” (generalized or exaggerated opinions); the representation is not materially misleading to an ordinary reasonably consumer; failure to properly allege material misstatement, causation or injury in fact; lack of standing; assent to class action waiver; under some circumstances, a clear and conspicuous clarifying disclaimer; and assent to resolve disputes via arbitration.
Takeaway: Both GBL § 349 and § 350 possess broad application and may enforced by private litigants and the New York State Attorney General. Consulting with a seasoned FTC Made in USA lawyer that knowing the prima facia elements, defenses and nuanced case law is imperative if you or your company has received a demand letter or been served with process related to related advertising practices. If signed by New York’s Governor, the FAIR Business Practices Act will provide the Attorney General more tools to protect consumers against a much wider range of business practices that are currently afforded pursuant to GBL § 349. The FAIR Act is intended to expand GBL § 349 as a result of a shift in regulatory enforcement policy at the federal level. Examples of such unfair and abusive acts that the FAIR Act is intended to cover include, but are not limited to, student loan servicing, mortgage servicing, debt collection, health insurance billing practices, the utilization of ambiguous fees, and the exploitation of consumers with limited English proficiency.
